Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedEmployment Cause (Memorandum of Claim dated 14th October 2011)· [2014] KEELRC 1259 (KLR)

Patrick Musikoyo Ojwang v Security Group Kenya Limited (Cause 1779 of 2011) [2014] KEELRC 1259 (KLR)

Employment and Labour Relations Court
18 July 2014
1,382 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court awarded a security guard 12 months' salary because his employer fired him without giving him a fair hearing, even though the reasons for firing were valid.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent from 1st May 1997 and promoted to crew commander in 2009, was summarily dismissed after driving a response vehicle without authority on 28th October 2010, during which a crew member fell out of the moving vehicle and suffered a head injury. The Claimant sought a declaration that the dismissal was unfair, terminal dues and compensatory damages of Kshs. 329,326/-, costs, interest and a certificate of service. The Respondent justified the dismissal on the ground that the Claimant drove without authority or training and caused the accident. The court, Onyango J, found that although the Respondent had valid substantive reasons for disciplinary action - the Claimant's unauthorized driving, corroborated by his apology letter - there was no evidence of compliance with Section 41 of the Employment Act: no proof the Claimant was informed of the reasons for intended termination, that the charges were explained, that he was told of his right to be accompanied by a fellow employee or union official, or that any hearing occurred; the disciplinary proceedings were not recorded. The dismissal was therefore unfair under Section 45. The court awarded one month's salary in lieu of notice (Shs. 11,173.36), service gratuity under Rule 17(1) of the Regulation of Wages (Protective Security) Order at 18 days' salary per completed year over 13 years (Shs. 87,152.20), and compensation of 12 months' salary (Shs. 134,080.32) considering his long service and the manner of dismissal. The Respondent was ordered to pay costs and interest from the date of judgment. The claim thus partially succeeded; the certificate of service prayer was not addressed in the disposition.

Key legal issues

#
01

Validity of reasons for dismissal

Holding

The Respondent had valid reasons to take disciplinary action against the Claimant

Reasoning

The court found that the Claimant drove the response vehicle without authority and a crew member was injured, as disclosed by the evidence of both the Claimant and RW1. The apology letter was treated as an admission. Thus the substantive reason for dismissal under Section 43 was satisfied.

p. 2
02

Procedural fairness under Section 41

Holding

There was no evidence that Section 41 was complied with, rendering the dismissal unfair

Reasoning

There was no letter or evidence that the Claimant was informed of the reasons for intended termination, that the charges were explained to him, that he was informed of his right to have a fellow employee or union official present, or whether any hearing took place at all. Disciplinary proceedings were not recorded. Section 41 non-compliance makes the dismissal unfair under Section 45.

p. 2
03

Remedies for unfair dismissal

Holding

Claimant awarded notice pay, service gratuity and 12 months' salary compensation

Reasoning

Having found unfair dismissal, the court applied Section 49(1)(a) for notice pay based on the last gross salary of Shs. 11,173.36; Rule 17(1) of the Regulation of Wages (Protective Security) Order for gratuity over 13 years of service; and Section 49(4) factors, including 13 years of long service and the manner of dismissal, justified 12 months' compensation.

p. 3

Legal principles established

#
  • For a dismissal to be valid, the employer must comply with Section 41 of the Employment Act on procedure and Section 43 on validity of reasons
  • Failure to comply with fair procedure under Section 41 renders summary dismissal unfair under Section 45
  • An unfairly dismissed employee is entitled to pay in lieu of notice under Section 49(1)(a) and an employee covered by the Regulation of Wages (Protective Security) Order is entitled to gratuity at 18 days' salary per completed year of service

Court orders

#
  1. 1.Declaration that the summary dismissal of the Claimant was unfair
  2. 2.Respondent to pay the Claimant Shs. 11,173.36 as pay in lieu of notice
  3. 3.Respondent to pay the Claimant Shs. 87,152.20 as service gratuity
  4. 4.Respondent to pay the Claimant Shs. 134,080.32 as compensation equivalent to 12 months' salary
  5. 5.Respondent to pay the Claimant's costs of the suit
  6. 6.Respondent to pay interest on the decretal sum and costs from date of judgment

Authorities

#

Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 49(1)(a)
  • Employment ActSection 49(4)
  • Regulation of Wages (Protective Security) OrderRule 17(1)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair summary dismissal and terminal dues)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Patrick Musikoyo Ojwang v Security Group Kenya Limited (Cause 1779 of 2011) [2014] KEELRC 1259 (KLR)", Case Analysis (2014). Employment Cause (Memorandum of Claim dated 14th October 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1259/eng@2014-07-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.